The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 1, 2002, at the request of a worker advisor, acting on behalf of the claimant. The Panel discussed this appeal on October 1, 2002.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Decision: Unanimous

Background

The claimant filed a claim for compensation benefits indicating that his left wrist condition was caused from his employment activities. The claimant stated the following on his application form for benefits, “Holding arm in the same position all the time, caused tendonitis. Arm stays motionless. Would get numbness/pain when holding mail.” The date of accident was reported as May 8, 2001 and was reported to the employer on the same day.

The Employer’s Report of Injury stated, in part, “Employee states that through repetitive use of left hand, gripping bundles, has tendonitis in left wrist.” In a separate letter dated May 17, 2001, the employer noted that the claimant had been performing the duties for the past 21 years. The claimant advised that the pain in his left wrist was the result of gripping mail with his left hand. It was normal for the claimant to sort/ prepare mail for delivery and to deliver mail. He had full control over the amount of mail he picked up and held with his left hand. There had been no changes to his work duties and there was no accident or incident that may account for his claimed injury. The employer pointed out that the claimant had been on vacation between April 9 to April 29, 2001 and that he returned to work on April 30th and May 1, 2001. He was then off again on leave until May 7, 2001.

On June 14, 2001, a WCB adjudicator contacted the claimant. The claimant said that he always had aches and pains but they always went away. About 3-4 weeks prior to May 8, 2001, he would feel numbness in his thumb and fingers and a clicking sound in his wrist when he moved his hand. The pain would come and go but as time went on, it became constant and he decided to report it and seek medical attention. When delivering mail, the claimant indicated that used his left hand to hold the mail with his arm raised against his chest and with his wrist bent towards his body so that the mail would be very close to his body. In the past, the claimant said he held about 3 – 3 1/2 inches of mail at a time. Since his problem started, he reduced the bundle to about 1 inch and kept an elastic band on it so that he did not have to grip the mail so tight. The claimant was diagnosed with Type 2 diabetes about a year ago which he controlled by a change of diet and life style.

The WCB adjudicator contacted the employer by e-mail on June 26, 2001, to obtain further information. In an e-mail response dated July 11, 2001, the employer indicated the following:

• it was not they were not aware of any other co-workers having similar complaints as those of the claimant’s.
• as far as the claimant’s supervisor was aware, there may be one other claim that was filed by an employee with similar complaints to those of the claimant’s.
• the claimant sorted mail at a maximum of 1.75 – 2 hours per day. He would be out on the street delivering mail for 3 hours per day with the option of reducing the bundle size of the mail that he was carrying.

On July 21, 2001, the claimant was advised by primary adjudication that it was unable to establish that he suffered a personal injury due to an accident arising out of and in the course of his employment. “Information on file would indicate that in the month prior to filing your claim you only worked three shifts with a five day break in between the second and third shift. It is also noted that you have been a letter carrier for 21 years and that there have been no changes to your workload or duties prior to the onset of your problems.” On October 10, 2001, a worker advisor submitted two reports for consideration which supported that the claimant’s left wrist condition was a result of his repetitive work duties as a letter carrier.

In a letter dated October 17, 2001, primary adjudication acknowledged receipt of the worker advisor’s letter but indicated that there would be no change made to its previous decision. Despite the physician’s confirmation of the claimant’s condition and the belief that it was related to the repetitive nature of his duties, primary adjudication felt there was insufficient evidence to suggest that it was caused by his employment. The case was then forwarded to Review Office for consideration. Prior to considering the appeal, Review Office sought the advice of a WCB orthopaedic consultant on January 10, 2002. In a response dated January 10, 2002, the orthopaedic consultant stated the following:

1. The diagnosis is not clear. There have been several postulated:
   1. tenosynovitis of the wrist flexor tendons;
   2. de Quervains which is a tenosynovitis of the short extensor and abd. pollicus longus tendons to the thumb on the radial aspect of the wrist. Testing was negative for the (Finklestein’s test)
   3. Local pressure on digital n. of thumb.
2. Tenosynovitis is not likely a result of work. The activity with the left wrist and thumb is static positioning to hold the mail and not repetitive.
3. No evidence reported for pre-existing.

In a decision dated January 11, 2002, Review Office confirmed that the evidence did not establish the worker’s symptoms were related to his employment.

Review Office placed weight on the opinion expressed by the WCB orthopaedic consultant, i.e. that the worker’s symptoms were not likely related to his employment as the activities performed with his left wrist and thumb involved static positioning, and were not repetitive. The Review Officer discussed the case with the consultant and he indicated that there was not enough repetitive motion of the wrist to cause a diagnosis of tenosynovitis. When holding mail, the worker’s wrist flexor tendons were not being utilized and the worker would likely use his right hand and wrist, as he has indicated that he was right handed. The consultant noted that carrying bundles of mail would not give rise to a diagnosis of tenosynovitis as this would involve a static position and that it was not repetitive.

On July 15, 2002, the worker advisor appealed Review Office’s decision to the Appeal Commission and submitted correspondence from an occupational health physician dated May 23, 2002, for consideration. On October 1, 2002, an oral hearing was held.

Reasons

Section 4(1) of the Workers Compensation Act (the Act) provides for the payment of compensation benefits to a worker where he or she sustains personal injury by accident arising out of and in the course of employment.
Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this part shall be paid by the board out of the accident fund, subject to the following subsections.”

In keeping with this section, the Panel must, initially, be satisfied that there has been an accident within the meaning of section 1(1) of the Act. An accident is defined as, “a chance event occasioned by a physical or natural cause; and includes

1. A wilful and intentional act that is not the act of the worker,
2. any
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease

and as a result of which a worker is injured.”

On or about January 17th and 24th, 2001, a WCB medical advisor reviewed the file and proffered the following opinion with respect to a probable diagnosis of the claimant’s condition. “Notes on file suggest a number of diagnoses, 1) De Quervains tenosynovitis, 2) irritation digital nerve thumb. Reviewing minimal info on file – Digital nerve irritation most likely & consistent with mechanism of gripping. Description of physio suggests mechanism reasonable.”

In a memorandum dated January 10th, 2002, a WCB orthopaedic consultant recorded a contrary view as to the claimant’s diagnosis. “Tenosynovitis not likely as result of work. The activity with the left wrist & thumb is static positioning to hold the mail & not repetitive.”

At the hearing, the claimant gave an exhaustive description of his work duties, which in our view were clearly repetitive and required constant periods of continued pinch force gripping pressure that would have caused his symptoms. We note that the WCB’s orthopaedic consultant was unfortunately not privy to the claimant’s oral evidence, nor was he provided with a complete and full description of the claimant’s daily workplace duties.

After carefully taking into consideration all of the evidence, we find that the worker did, on a balance of probabilities, sustain an accident resulting in personal injury, which arose out of and in the course of his employment. Accordingly, the claim is acceptable and the claimant’s appeal is hereby allowed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of November, 2002